Case Detail

FOIA Project Annotation: A federal court in Missouri has ruled that the Army Corps of Engineers properly withheld records under Exemption 5 (deliberative process privilege) generated during a multi-year Upper Missouri River System Flow Frequency Study. The study was done by a Technical Advisory Group, composed of subject matter experts from universities or private practice, and an Inter-Agency Advisory Group, composed of subject matter experts from federal agencies. The court first examined whether the consultants' records could be considered inter- or intra-agency memoranda, noting that "the TAG and IAG members herein were not acting as advocates on behalf of any person or group, and were consultants hired to advise the government." The court found that email, meeting notes, memoranda and letters from 1997 through 2000 were covered by the exemption, pointing out that "these materials record the discussion and debates about what recommendations the TAG and IAG should offer to the government regarding the proper procedure for the FFS, and are therefore the type of communications which were obviously a part of the process by which the ultimate FFS decisions were made." The court decided that proposed meeting agendas were also protected and explained that "the agenda and minutes evidence the issues the TAG and IAG considered worthy of discussion, and as such evidence the thought processes and issues of the TAG and IAG members." The court also rejected the plaintiff's claim that the agency had waived the exemption's protections by releasing some information about the study on the Internet. The court observed that "selective disclosure of some withheld material does not waive use of exemptions to protect similar, but undisclosed information."
Issues: Exemption 5 - Inter- or intra-agency record, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2005-11-02	1	COMPLAINT against defendant United States Army Corps of Engineers 3 Summons issued, Fee paid in the amount of $250, Consents issued 2, , filed by Missouri Coalition for the Environment Foundation. (Attachments: # 1 Exhibits# 2 Civil Cover Sheet # 3 Original Filing Form)(CDD, ) (Entered: 11/02/2005)
2005-11-02	2	DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Plaintiff Missouri Coalition for the Environment Foundation. (CDD, ) (Entered: 11/02/2005)
2005-11-02		Summons Issued (3 @ 30 days ) as to defendant United States Army Corps of Engineers, U.S. Attorney and U.S. Attorney General (CDD, ) (Entered: 11/02/2005)
2005-11-02		Receipt # S2006-001197 in the amount of $250.00 for CIVIL FILING FEE, CIVIL FILING FEE-2ND 1/2 on behalf of COALITION FOR THE ENVIRONMENT FOUNDATION. (CSW,) (Entered: 11/02/2005)
2005-12-05	3	ANSWER to Complaint by United States Army Corps of Engineers.(Rund, Jane) (Entered: 12/05/2005)
2005-12-22	4	FULL CONSENT has been received by by Plaintiff Missouri Coalition for the Environment Foundation, Defendant United States Army Corps of Engineers. (KXS, ) (Entered: 12/22/2005)
2005-12-27	5	RULE 16 ORDER Joint Scheduling Plan due by 1/27/2006. Rule 16 Conference set for 2/1/2006 08:30 AM in Chambers before Mag Judge Frederick R. Buckles. Signed by Judge Frederick R. Buckles on 12/27/05. (KXS, ) (Entered: 12/27/2005)
2006-01-26	6	JOINT SCHEDULING PLAN by Plaintiff Missouri Coalition for the Environment Foundation.. (Heisel, Edward) (Entered: 01/26/2006)
2006-02-01	7	CASE MANAGEMENT ORDER This case is assigned to Track: 1: ExpiditedAny motion to dismiss, motion for summary judgment ormotion for judgment on the pleadings shall be filed no later thanMarch 31, 2006. Opposition briefs shall be filed no later than May1, 2006, and any reply brief may be filed no later than May 10,2006.. Signed by Judge Frederick R Buckles on 2/1/06. (JWJ, ) (Entered: 02/01/2006)
2006-03-31	8	MOTION for Summary Judgment by Defendant United States Army Corps of Engineers. (Attachments: # 1 Memorandum in Support# 2 Declaration of Minear# 3 Declaration of Goldman# 4 Index 1# 5 Index 2# 6 Letter# 7 Material Facts)(Rund, Jane) (Entered: 03/31/2006)
2006-03-31	9	First MOTION for Summary Judgment by Plaintiff Missouri Coalition for the Environment Foundation. (Attachments: # 1 Memorandum of Law in Support# 2 Statement of Undisputed Facts# 3 Exhibit A to Statement of Facts# 4 Exhibit B to Statement of Facts)(Heisel, Edward) (Entered: 03/31/2006)
2006-05-01	10	RESPONSE in Opposition re 9 First MOTION for Summary Judgment filed by Defendant United States Army Corps of Engineers. (Rund, Jane) (Entered: 05/01/2006)
2006-05-01	11	MEMORANDUM in Opposition re 8 MOTION for Summary Judgment filed by Plaintiff Missouri Coalition for the Environment Foundation. (Attachments: # 1 Response to Statement of Facts# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C)(Heisel, Edward) (Entered: 05/01/2006)
2006-05-10	12	REPLY to Response to Motion re 9 First MOTION for Summary Judgment filed by Defendant United States Army Corps of Engineers. (Rund, Jane) (Entered: 05/10/2006)
2006-05-10	13	AMENDED DOCUMENT by Defendant United States Army Corps of Engineers. Amendment to 8 MOTION for Summary Judgment (STATEMENT OF UNCONTROVERTED MATERIAL FACTS) . (Attachments: # 1 Second Declaration of David M. Goldman)(Rund, Jane) (Additional attachment(s) added on 7/8/2010: # 1 Second Declaration) (LMR). (Entered: 05/10/2006)
2006-05-10	14	REPLY to Response to Motion re 9 First MOTION for Summary Judgment filed by Plaintiff Missouri Coalition for the Environment Foundation. (Heisel, Edward) (Entered: 05/10/2006)
2007-03-20	15	ORDER IT IS HEREBY ORDERED that defendant's motion for summaryjudgment (Docket No. 8-1) is hereby GRANTED.IT IS FURTHER ORDERED that plaintiff's motion for summaryjudgment (Docket No. 9-1) is hereby DENIED.IT IS FURTHER ORDERED that plaintiff's request forattorneys' fees is DENIED. Signed by Judge Frederick R Buckles on 3/20/07. (KXS, ) (Entered: 03/20/2007)
2007-03-20	16	JUDGMENT IT IS HEREBY ORDERED that defendant United States ArmyCorps of Engineers shall have judgment against plaintiff MissouriCoalition For The Environment Foundation on plaintiff's Complaint,and plaintiff's Complaint is hereby dismissed with prejudice. Signed by Judge Frederick R Buckles on 3/20/07. (KXS, ) (Entered: 03/20/2007)
2007-05-18	17	NOTICE OF APPEAL as to 16 Judgment - (Case), Judgment - (Case), 15 Order on Motion for Summary Judgment,,, by Plaintiff Missouri Coalition for the Environment Foundation. Filing fee $ 455, receipt number 1103774. (Attachments: # 1 Form A# 2 Form B)(Heisel, Edward) (Entered: 05/18/2007)
2007-05-22	18	NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by clerk to USCA regarding 17 Notice of Appeal,. Notice of Appeal filed on ?05/18/2007. NOTIFICATION TO COUNSEL AND PRO SE PARTY: FILE REQUEST FOR TRANSCRIPT WITH DISTRICT COURT CLERKS OFFICE. SUBMIT FORM A & B TO EIGHTH CIRCUIT CLERKS OFFICE(DLT,) (Entered: 05/22/2007)
2007-05-22		***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Tue May 22 11:15:14 CDT 2007 (Appeals, Clerk 3) (Entered: 05/22/2007)
2008-09-16	19	OPINION from USCA re 17 Notice of Appeal: USCA Appeal #: 07-2218. We remand for further proceedings. (NCL) (Entered: 09/16/2008)
2008-09-16	20	Judgment of USCA as to 17 Notice of Appeal, filed by Missouri Coalition for the Environment Foundation. Regarding: Final Judgment. USCA Appeal #: 07-2218. This appeal from the United States District Court was submitted on the record of the district court, briefs of the parties and was argued by counsel. After consideration, it is hereby ordered and adjudged that the cause is remanded to the district court for proceedings consistent with the opinion of this court. (NCL) (Entered: 09/16/2008)
2008-11-07	21	MANDATE of USCA as to 17 Notice of Appeal, filed by Missouri Coalition for the Environment Foundation Decision of USCA:remanded to the District Court USCA #:07-2218 - In accordance with the opinion and judgment of 9/16/2008, and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the above-styled matter.(MRC) (Entered: 11/07/2008)
2009-02-04	22	NOTICE by Plaintiff Missouri Coalition for the Environment Foundation of Appearance of Counsel (Hubertz, Elizabeth) [Document is an entry of appearance. Attorney notified regarding filing error. Attorney added to case. Modified on 3/16/2009 (MRC).] (Entered: 02/04/2009)
2009-02-04	23	NOTICE Appearance of Counsel: by Plaintiff Missouri Coalition for the Environment Foundation (Lipeles, Maxine) [Document is an entry of appearance. Attorney contacted regarding the filing error. Attorney added to the case. Modified on 3/16/2009 (MRC). (Entered: 02/04/2009)
2010-07-23	24	ORDER - IT IS HEREBY ORDERED that the Corps shall have to an including August 23, 2010, to provide the supplemental documentation described in this Order. Signed by Magistrate Judge Frederick R. Buckles on 7/23/10. (KJF) (Entered: 07/23/2010)
2010-07-30	25	MOTION for Extension of Time to File Response/Reply as to 24 Order by Defendant United States Army Corps of Engineers. (Rund, Jane) (Entered: 07/30/2010)
2010-08-02	26	ORDER IT IS HEREBY ORDERED that defendants Motion for Enlargement of Time [Doc. #25] is GRANTED. IT IS FURTHER ORDERED that defendant shall have to and including September 22, 2010, by which to comply with this Courts Order of July 23, 2010. Granting 25 Motion for Extension of Time to File Response/Reply re 25 MOTION for Extension of Time to File Response/Reply as to 24 Order Responses due by 9/22/2010 Signed by Magistrate Judge Frederick R. Buckles on 8/2/10. (JWJ) (Entered: 08/02/2010)
2010-09-21	27	RESPONSE TO COURT ORDER re 24 Order by Defendant United States Army Corps of Engineers. (Attachments: # 1 Declaration of David Goldman, # 2 Exhibit A (Vaughn Index), # 3 Exhibit B (1 of 6), # 4 Exhibit B (2 of 6), # 5 Exhibit B (3 of 6), # 6 Exhibit B (4 of 6), # 7 Exhibit B (5 of 6), # 8 Exhibit B (6 of 6))(Rund, Jane) (Entered: 09/21/2010)
2011-04-11	28	MOTION to Withdraw as Attorney ;attorney/firm Edward J. Heisel by Plaintiff Missouri Coalition for the Environment Foundation. (Heisel, Edward) (Entered: 04/11/2011)
2011-04-12	29	ORDER IT IS HEREBY ORDERED that attorney Edward J. Heisel's Motion to Withdraw as Counsel of Record for Missouri Coalition for the Environment Foundation (Doc. #28) is GRANTED . Granting 28 Motion to Withdraw as Attorney. Attorney Edward J. Heisel terminated. Signed by Magistrate Judge Frederick R. Buckles on 4/12/2011. (NCL) (Entered: 04/12/2011)
2011-06-21	30	MEMORANDUM AND ORDER ( SEE MEMORANDUM AND ORDER FOR COMPLETE DETAILS ) Having conducted the segregability analysis as directed by the Eighth Circuit, the undersigned adopts and incorporates herein the conclusions reached in the Memorandum and Order dated March 20, 2007. Signed by Magistrate Judge Frederick R. Buckles on 6/21/11. (JWJ) (Entered: 06/21/2011)
2011-06-21	31	JUDGMENT - IT IS HEREBY ORDERED that defendant United States Army Corps of Engineers shall have judgment against plaintiff Missouri Coalition For The Environment Foundation on plaintiff's Complaint, and plaintiff's Complaint is hereby dismissed with prejudice.. Signed by Magistrate Judge Frederick R. Buckles on 6/21/2011. (MRC) (Entered: 06/21/2011)
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